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RESTRICTIVE COVENANTS CASE LAW FROM HOUSTON COURTS OF APPEALS
Rules governing the construction of restrictive covenants
1. Standard of review
The subdivision's deed restrictions are restrictive covenants concerning real property. See Tex. Prop. Code
Ann. § 202.001(4) (Vernon 2007) (defining restrictive covenant). Restrictive covenants are subject to the
general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Bank United v.
Greenway Improvement Ass'n, 6 S.W.3d 705, 707 (Tex. App.--Houston [1st Dist.] 1999, pet. denied). As when
interpreting any contract, the court's primary duty in construing a restrictive covenant is to ascertain the
drafter's intent from the instrument's language. Bank United, 6 S.W.3d at 708. In ascertaining the drafter's
intent, we must examine the covenant as a whole in light of the circumstances present when the covenant was
made. Pilarcik, 966 S.W.2d at 478. We must give a restrictive covenant's words and phrases their commonly
accepted meaning. Truong v. City of Houston, 99 S.W.3d 204, 214 (Tex. App.--Houston [1st Dist.] 2002, no
pet.). We review a trial court's interpretation of a restrictive covenant de novo. Air Park-Dallas Zoning
Committee v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex. App.--Dallas 2003, no pet.).
Whether restrictive covenants are ambiguous is a matter of law for the court to decide. Pilarcik, 966 S.W.2d at
478; Samms v. Autumn Run Cmty. Improvement Ass'n, Inc., 23 S.W.3d 398, 402 (Tex. App.--Houston [1st Dist.]
2000, pet. denied). A covenant is unambiguous if, after appropriate rules of construction have been applied,
the covenant can be given a definite or certain legal meaning. Pilarcik, 966 S.W.2d at 478; Pitman v. Lightfoot,
937 S.W.2d 496, 517 (Tex. App.--San Antonio 1996, writ denied) (holding same concerning contracts
generally). In contrast, if, after appropriate rules of construction have been applied, a covenant is susceptible of
more than one reasonable interpretation, the covenant is ambiguous. Pilarcik, 966 S.W.2d at 478; Universal C.
I. T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951). Mere disagreement over a restrictive covenant's
interpretation does not necessarily render the covenant ambiguous. Air Park-Dallas Zoning Comm., 109 S.W.3d
at 909.
2. Common law versus section 202.003(a)
At common law, covenants restricting the free use of land are not favored but will still be enforced when they
are confined to a lawful purpose and are clearly worded. E.g., Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.
1987). Accordingly, under the common law, a restrictive covenant's words cannot be enlarged, extended,
stretched, or changed by construction. Id. All doubts concerning a restrictive covenant's terms are resolved in
favor of the free and unrestricted use of the land, and any ambiguity must be strictly construed against the
party seeking to enforce the covenant. Id.
In 1987, the Legislature amended the Texas Property Code to provide that all restrictive covenants contained in
instruments governing certain residential developments, regardless of the date on which the covenants were
created, must be liberally construed to give effect to their purposes and intent. See Act of May 23, 1987, 70th
Leg., R.S., ch. 712, § 1, 1987 Tex. Gen. Laws 2585, 2585) (current version at Tex. Prop. Code Ann. §§
202.002(a), 202.003(a) (Vernon 2007)).
3. Split among the courts
Some courts of appeals have recognized that the common-law requirement of construing restrictions strictly and
section 202.003(a)'s requirement of construing residential covenants liberally to effectuate their purposes and
intent might appear contradictory. (4) As a result, some courts of appeals have held or implied that section
202.003(a)'s liberal-construction rule concerning residential covenants supersedes the common-law rule of
strict construction. (5) In contrast, other courts of appeals, including ours, have concluded that there is no
discernable conflict between the common law and section 202.003(a). (6) Even among the courts that believe
that the common law and section 202.003(a) can be reconciled, there exists a split in how to apply section
202.003(a). Some of these courts, including ours, have simply continued to apply the common-law rule without
a precise explanation of how to reconcile it with section 202.003(a). (7) Other courts of appeals have held that
the common-law rule applies only when there is an ambiguity concerning the drafter's intent, but to determine if
such an ambiguity exists, these courts first apply section 202.003(a)'s liberal-construction mandate. (8)
Finally, we note that some courts of appeals since 1987 have simply continued applying the common-law
strict-construction rule without referring to section 202.003(a) at all. (9) Others, including ours, have applied
section 202.003(a)'s liberal-construction standard without referring to the common-law construction principles at
all. (10)
The Texas Supreme Court has noted, but not yet resolved, the potential conflict between the common law and
section 202.003(a). See Pilarcik, 966 S.W.2d at 478; see also Hebert, 943 S.W.2d at 908 n.2 (noting that
supreme court's opinion in Wilmoth--which relied on common-law restrictive-covenant-construction rules and not
on section 202.003(a)--issued soon after section 202.003(a)'s effective date, but that issue of whether section
202.003(a) changed the common-law construction rules was not raised or briefed in Wilmoth).
4. This Court's approach
In this case, neither party asserts that the covenant is ambiguous. The trial court found that the covenant is
unambiguous, and we agree. Because the covenant is unambiguous, our interpretation of the Sandalwood
covenant is the same under both the common law and section 202.003(a). Because the Supreme Court has not
yet spoken on the issue, and because the outcome of this case does not rely on our resolving any ambiguity
between the common law and section 202.003(a), it is unnecessary for us to address that question.
Uptegraph v. Sandlwood Civic Club (Tex.App.- Houston [1st Dist.] Feb. 5, 2010)(Taft)
(homeowner law, HOA litigation, restrictive covenants, deed restrictions, fence)
AFFIRM TC JUDGMENT: Opinion by Justice Taft
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00764-CV Scott D. Uptegraph, Jr. and Kara K. Uptegraph v. Sandalwood Civic Club
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach
Restrictive covenants are subject to the general rules of contract construction. City of Pasadena v. Gennedy,
125 S.W.3d 687, 692 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). Words used in a restrictive covenant
may not be enlarged, extended, stretched, or changed by construction. Wilmoth v. Wilcox, 734 S.W.2d 656, 657
(Tex. 1987); Pebble Beach Prop. Owners' Assoc. v. Sherer, 2 S.W.3d 283, 288 (Tex. App.-San Antonio 1999,
pet. denied). Rather, words and phrases used in the covenant must be given their commonly accepted
meaning. Wilmoth, 734 S.W.2d at 657.
In construing a restrictive covenant, the court's primary task is to determine the intent of its framers. See Tex.
Prop. Code Ann. § 202.003(a) (Vernon 2007) ("A restrictive covenant shall be liberally construed to give effect
to its purposes and intent."); Wilmoth, 734 S.W.2d at 657; Wilchester W. Concerned Homeowners LDEF, Inc. v.
Wilchester W. Fund, Inc., 177 S.W.3d 552, 563 (Tex. App.-Houston [1st Dist.] 2005, pet. denied); Samms v.
Autumn Run Comty. Improvement Ass'n, 23 S.W.3d 398, 402 (Tex. App.-Houston [1st Dist.] 2000, pet. denied).
Covenants restricting the free use of land are not favored by the courts, but when they are confined to a lawful
purpose and are clearly worded, they are generally enforceable. Wilmoth, 734 S.W.2d at 657. "All doubts must
be resolved in favor of the free and unrestricted use of the premises, and the restrictive clause must be strictly
construed against the party seeking to enforce it." Highlands Mgmt. Co. v. First Interstate Bank, 956 S.W.2d
749, 753 (Tex. App-Houston [14th Dist.] 1997, pet. denied);see Ashcreek Homeowner's Ass'n v. Smith, 902
S.W.2d 586, 588-89 (Tex. App.-Houston [1st Dist.] 1995, no writ) (explaining that Property Code section
202.003 does not does not conflict with doctrine that restrictive covenants be construed either to favor free and
unrestricted use of land or against party seeking enforcement).
Hourani v. Katzen (Tex.App.- Houston [1st Dist.] Nov. 25, 2009)(Higley)
(suit for declaratory relief, dispute over restrictive covenants in a residential subdivision, defense of waiver,
estoppel, UDJA attorney's fees, appointment of master in chancery)
AFFIRM TC JUDGMENT: Opinion by Justice Laura Carter Higley
Before Justices Jennings, Higley and Sharp
01-07-00971-CV Monzer Hourani and Carlton Park Owner's Association v. Jonathan Katzen
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Jennifer Walker Elrod
Rakowski v. Committee to Protect Creek Village Homeowner's Rights
(Tex.App. - Houston [14th Dist.] Apr. 3, 2008) (Subst. plurality op. by Edelman) (real estate law, home owner
law, subdivision restrictive covenant dispute) (appellate opinion with dissent)
AFFIRMED: Opinion by Justice Edelman
14-05-01143-CV Robert A. Rakowski and Clear Creek Civic Association, Inc. v. Committee to Proctect Clear
Creek Village Homeowners' Rights and Preserve our Park
Appeal from 405TH District Court of Galveston County
Concurring and Dissenting Opinion by Justice Frost in Robert A. Rakowski and Clear Creek Civic Association,
Inc. v. Committee to Proctect Clear Creek Village Homeowners' Rights and Preserve our Park
Trial Court Judge: Wayne J. Mallia
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